Ambler #188312 v. Washington et al
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
LEO MICHAEL AMBLER,
Case No. 2:16-cv-148
Honorable Paul L. Maloney
HEIDI WASHINGTON, et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The
Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act,
PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2),
1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards,
Plaintiff’s action will be dismissed for failure to state a claim.
Plaintiff Leo Michael Ambler, a state prisoner currently confined at the Chippewa
Correctional Facility (URF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants MDOC Director Heidi Washington, Michigan Reformatory (RMI) Warden Carmen Palmer1,
RMI Deputy Warden Gregory Skipper, RMI Deputy Warden Scott Schooley, RMI Classification Director
N. Marshall, RMI Resident Unit Manager Rob Sutherland, RMI Corrections Officer Unknown Trieweiler,
RMI Food Service Supervisor James Montgomery, RMI Food Service Supervisor Unknown North, RMI
Food Service Supervisor Unknown Kurr, RMI Food Service Supervisor Unknown LaRoe, Kinross
Correctional Facility (KCF) Warden Duncan MacLaren, KCF Deputy Warden Kathy Olson, KCF
Administrative Assistant David Mastaw, KCF Grievance Coordinator Louis Berlinger2, KCF Assistant
Resident Unit Manager Patrick Harrington, KCF Resident Unit Manager Marquita Malette, KCF
Lieutenant Stephanie Touri, KCF Corrections Officer Martin Miller, KCF Corrections Officer Michelle
Hoey, KCF Corrections Officer Unknown Bury, KCF Corrections Officer James Corrigan, Alger
Correctional Facility (LMF) Warden Catherine Bauman, LMF Deputy Warden Anthony Immel, LMF
Resident Unit Manager G. Schram, LMF Assistant Resident Unit Supervisor P. Hubble, LMF Mailroom
Office Assistant C. White, LMF Mailroom Office Assistant J. Lundquist, LMF Administrative Assistant
Dean Potila, and LMF Corrections Officer Lyle Rutter.
In Plaintiff’s complaint, he alleges that he was transferred to RMI in July of 2013, and was
classified to work in Food Service by Defendant Marshall. On December 8, 2013, Plaintiff began working
Also spelled Plamer in the caption of the complaint.
Also spelled Berliner in the caption of the complaint.
under the direct supervision of Defendants Montgomery, Kurr, and LaRoe. Plaintiff spoke with Defendants
Kurr regarding his prior experience as a food service clerk. Defendant Kurr and Food Service Supervisor
Harkrader told Plaintiff that he could work as a food service clerk part-time until he passed a security
clearance. On April 15, 2014, Plaintiff was told that he had not been cleared for the job of food service
clerk. Plaintiff sought an explanation from Defendant Marshall, but did not receive a satisfactory
explanation. Plaintiff filed a grievance. Defendant Skipper responded to the grievance and informed
Plaintiff that no explanation needed to be given.
On April 21, 2014, Plaintiff witnessed Defendant Montgomery engage in a disagreement
with another prisoner, during which he swore at the prisoner and ordered him into the office. The incident
was also witnessed by Defendants Kurr, LaRoe, and Trieweiler. Plaintiff was questioned about the incident
by Thomsen. On April 23, 2014, Plaintiff was told that Defendant Schooley had laid him in from his work
assignment. On April 24, 2014, Plaintiff asked Defendant Kurr about the lay-in during breakfast.
Defendant Kurr stated that she did not know about the lay-in and would try to find out. During lunch,
Defendant Kurr told Plaintiff that Food Service Supervisors Corder and Harkrader had contacted
Defendant Marshall, and that no one knew of any suspension. Plaintiff was told to report for work the next
Plaintiff worked his food service detail from April 25, 2014, until April 28, 2014, without
incident. However, on April 28, 2014, Defendant Schooley called Plaintiff into his office and told him that
he was suspended because Defendant Schooley would “not have a prisoner working in Food Service who
makes allegations of wrong doing against a staff member.” Plaintiff attempted to explain that he had not
accused Defendant Montgomery of threatening him, and that it was another prisoner and Plaintiff was
merely a witness. However, Defendant Schooley accused Plaintiff of changing his story and ordered him
to leave the school building. When Plaintiff went to retrieve his ID card, Defendant LaRoe asked him what
had happened, but when Plaintiff attempted to explain, Defendant Schooley appeared and ordered Plaintiff
to leave immediately. Plaintiff filed a grievance.
On May 9, 2014, Plaintiff’s work detail was officially cancelled and he was reclassified to
the jobs of Library Aide and Gym Porter. On May 13, 2014, Defendant Marshall interviewed Plaintiff on
his grievance and stated, “You accused an employee of inappropriate behavior, which if found valid would
potentially lead to discharge of the employee. An investigation of the incident through video and
eyewitnesses did not validate your claim.” On May 22, 2014, Plaintiff was transferred to KCF, despite
the fact that he had not requested a transfer and was not eligible for placement into a transfer pool until July
5, 2014. The reason given for the transfer was to accommodate bed space for a “force feed” from another
On June 16, 2014, Plaintiff gave Defendant Harrington a statement describing an incident
with some prisoners at the R. A. Handlon Correctional Facility (MTU) the previous year, and indicating
that he was currently being threatened by associates of those individuals. On November 10, 2014, Plaintiff
was approached by two unknown black prisoners, who told him that if he wanted to stay on the KCF yard,
he would have to start paying protection. When Plaintiff returned to his cell, he discovered that his wall
locker had been broken into and his cellmate, prisoner Hawk, was agitated. Plaintiff found much of his
personal property was missing and began to pack his remaining property in a duffle bag and two
footlockers. Plaintiff then went to the officers’ desk and told Defendants Hoey and Miller about the threats
and the destruction of his locker. Plaintiff stated that he no longer felt safe in the unit or facility. Defendant
Hoey called for Defendant Touri and took Plaintiff to his cell to secure his property. Defendant Hoey told
Plaintiff that his property would be secured in Defendant Harrington’s office and sent Plaintiff to the office
to talk to Defendant Touri. Plaintiff was then taken to a protection cell by Defendant Miller.
On November 14, 2014, Plaintiff sent a written request to Defendant Berlinger for a
DTMB-1104 form to file an Administrative Board Prisoner Property Claim. However, Defendant
Berlinger did not respond. In addition, Plaintiff was seen by Defendants Olson and Malette regarding the
loss of his property. Defendant Malett told Plaintiff that it was a dog-eat-dog world and that Plaintiff should
go back to the yard. Plaintiff was given a direct order to leave segregation later that day, but Plaintiff
refused. Plaintiff received a class II misconduct for disobeying a direct order. Plaintiff’s misconduct was
reviewed by Defendant Touri, who elevated it to a class I, stating that Plaintiff was unmanageable and
refused to follow staff direction.
On November 18, 2014, Plaintiff sent a second request for a DTMB-1104 form to file an
Administrative Board Prisoner Property Claim. Defendant Berlinger subsequently returned the second
request along with a response which improperly directed Plaintiff to file a grievance explaining the loss and
identifying the staff who were responsible. Plaintiff filed a grievance in compliance with Defendant
Berlinger’s instructions, even though he was aware that they were contrary to departmental practice.
On November 20, 2014, Plaintiff was given 10 days segregation for the class I misconduct.
On November 21, 2014, Plaintiff was told that he was to be confined in administrative segregation pending
a transfer to another facility. On November 26, 2014, Plaintiff was transferred to LMF. Plaintiff received
his personal property, which was opened to search for contraband. Plaintiff noticed that some items were
missing from his duffel bag. However, property belonging to his former cellmate Hawk, who as also being
transferred, was searched at the same time. During the search, Plaintiff noticed that some of his stolen
property was in Defendant Hawk’s possession. On November 27, 2014, Plaintiff sent a written notice to
Defendant Rutter at LMF regarding the property in prisoner Hawk’s possession. On November 30, 2014,
Plaintiff filed a grievance on Defendant Bury regarding the property which was missing from his duffle bag.
Plaintiff also filed a grievance on Defendant Berlinger for failing to provide him with a DTMB-1104 form.
Plaintiff’s grievance against Defendant Hoey and Miller for the initial loss of his property
was denied by Defendants Harrington and Malette, who did not address the damage to the locker where
the property had been stolen, but instead noted that there had been no damage to Plaintiff’s segregation
locker. Defendants Mastaw and Olson denied Plaintiff’s grievance against Defendant Berlinger.
On January 8, 2015, Plaintiff plugged his new MP3 player into the Alger kiosk to
download his personal music catalog. When Plaintiff checked his System Message logs, he discovered that
his stolen MP3 player had been plugged into the KCF kiosk on November 27, 2014. Plaintiff mailed a
letter to ACCESS Corrections Company to obtain a printout of the system messages from November 10,
2014, until January 8, 2015. Plaintiff received a reply indicating that the system messages are not archived
and that the deactivation protocols regarding the stolen MP3 player were activated on December 15, 2014,
after LMF staff contacted ACCESS to report the theft.
Plaintiff received a denial of his grievance against Defendant Bury on January 12, 2015,
which was signed by Defendants Harrington and Malette. Plaintiff requested a step II appeal form from
Defendant Berlinger, but received no response. On January 13, 2015, Plaintiff sent a letter to Defendant
Corrigan regarding the stolen MP3 player. However, Plaintiff never received a response. Plaintiff’s
grievance appeals regarding the loss of property were denied and Plaintiff was not given a DTMB-1104
form. Plaintiff also claims that he was not authorized to petition the Prisoner Benefit Fund for
reimbursement. Defendant Olson stated that Plaintiff was at fault for failing to follow staff instructions in
requesting a DTMB-1104 form, and that Defendant Berlinger was not at fault. On July 9, 2015, Plaintiff
filed a complaint with the Michigan Court of Claims, which was dismissed on August 25, 2015, pursuant
to a motion for summary disposition by Defendants.
In May of 2015, Plaintiff’s father ordered a legal manual called, “Section 1983 Litigation
in a Nutshell,” for Plaintiff. On July 4, 2015, Plaintiff sent a written inquiry to the Alger Mailroom regarding
this book. Defendant White responded that he had made inquiries but had not discovered the whereabouts
of the book. On August 10, 2015, Plaintiff’s father ordered a second legal guide book from Amazon to
be sent to Plaintiff at LMF. On August 12, 2015, Plaintiff was transferred from LMF to URF. On August
13, 2015, the book arrived at LMF and was signed for by “BYE.” On August 29, Plaintiff received email
from his father regarding the second book. On August 30, 2015, Plaintiff submitted a written request to
URF for a claim status check of the book. On September 1, 2015, Plaintiff sent a letter to Richard Russell,
manager of the grievance section, regarding the status of his step III appeals.
Plaintiff’s father contacted officials at LMF and URF in an attempt to track down the book
that he had ordered for Plaintiff. On September 13, 2015, Plaintiff sent an inquiry to the URF mailroom
regarding the missing book. Plaintiff also filed a grievance regarding the issue with LMF Grievance
Coordinator Bonevelle. On September 29, 2015, Defendant Hubble responded to the grievance by stating
that the book had been forwarded to URF by Defendant Lundquist. However, Plaintiff asserts that
Defendant Lundquist had previously told Plaintiff’s father that she had no record of the book. Also on
September 29, 2015, Defendant Potila sent a letter to Plaintiff’s father claiming that there were no records
of the missing book coming into LMF and that no one with the initials “BYE” works in the warehouse or
On October 3, 2015, Plaintiff’s father ordered a third copy of the book from Amazon.
The book was misdirected to LMF, but was eventually forwarded to Plaintiff at URF. Plaintiff was called
to the property room to pick up the book on October 20, 2015. Plaintiff and his father continued to
contact prison officials in an effort to discover what had happened with the two missing books. Finally, on
January 8, 2016, Plaintiff’s father received a response from Defendant Potila stating that he had identified
the employee who signed for the missing books and that a system was being implemented to track books
from arrival to delivery. Plaintiff contends that Defendant Potila had previously told Plaintiff’s father that
such a system was already in place when the books disappeared. Plaintiff’s father sent a letter to
Defendant Washington, asking for an investigation.
Plaintiff claims that Defendants violated his rights under the First, Eighth, and Fourteenth
Amendments to the United States Constitution. Plaintiff seeks compensatory, punitive, and nominal
damages, as well as declaratory and injunctive relief.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not
contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions.
Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must
determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability
requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2));
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal
plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal rights, not
a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific
constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
the Court notes that Plaintiff’s claims against Defendants Washington, Palmer, Marshall, Sutherland,
Trieweiler, North, MacLaren, Olson, Mastaw, Corrigan, Bauman, Immel, Schram, Hubble, White, and
Rutter are all based on the supervisory nature of their jobs, the fact that they were present during the
incident between Defendant Montgomery and another prisoner, or their response or lack thereof to
Plaintiff’s grievances and other written inquiries. Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability.
Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978);
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based
upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Greene
v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can
supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d
at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be
imposed simply because a supervisor denied an administrative grievance or failed to act based upon
information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A]
plaintiff must plead that each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendants
Washington, Palmer, Marshall, Sutherland, Trieweiler, North, MacLaren, Olson, Mastaw, Corrigan,
Bauman, Immel, Schram, Hubble, White, and Rutter engaged in any active unconstitutional behavior.
Accordingly, he fails to state a claim against them.
Plaintiff claims that Defendants Schooley, Skipper, Montgomery, Kurr, LaRoe, Hoey,
Miller, Berlinger, Malette, Harrington, Touri, and Bury violated his Eighth Amendment rights. The Eighth
Amendment imposes a constitutional limitation on the power of the states to punish those convicted of
crimes. Punishment may not be “barbarous” nor may it contravene society’s “evolving standards of
decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The Amendment, therefore, prohibits
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conduct by prison officials that involves the “unnecessary and wanton infliction of pain.” Ivey v. Wilson,
832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation
alleged must result in the denial of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S.
at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is
only concerned with “deprivations of essential food, medical care, or sanitation” or “other conditions
intolerable for prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he
faced a sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate
indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010) (citing
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference standard to medical
claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference standard
to conditions of confinement claims)).
Plaintiff claims that his transfer from RMI to KCF at the behest of Defendants Schooley,
and Skipper, Defendant Montgomery’s use of abusive and aggressive language against prisoner Langelle
in Plaintiff’s presence, Defendant Berlinger’s failure to follow procedural rules, and that failure of
Defendants Kurr, LaRoe, Hoey, Miller, Malette, Harrington, Touri, and Bury to intervene on Plaintiff’s
behalf or to properly investigate the situation violated the Eighth Amendment. However, for the reasons
stated above, such allegations do not rise to the level of an Eighth Amendment violation. Therefore,
Plaintiff’s Eighth Amendment claims are properly dismissed.
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Plaintiff also claims that Defendants retaliated against him in violation of the First
Amendment by transferring him from RMI to KCF. Retaliation based upon a prisoner’s exercise of his
or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish
that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would
deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was
motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that
the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged
retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy
v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v. DeRobertis, 598 F. Supp. 501, 506 (C.D. Ill.
1984), aff’d, 774 F.2d 1167 (7th Cir. 1985). “[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material
facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting
Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”); Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir. 2004) (without more,
conclusory allegations of temporal proximity are not sufficient to show a retaliatory motive). Plaintiff merely
alleges the ultimate fact of retaliation in this action. Plaintiff fails to allege any specific facts regarding the
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involvement of any of the named Defendants in his transfer. The reason for his transfer was reportedly to
accommodate bed space for a “force feed” from another prison. Plaintiff has not presented any facts to
support his conclusion that Defendants retaliated against him for engaging in protected conduct.
Accordingly, his speculative allegation fails to state a claim.
Plaintiff also claims that his transfer from RMI to KCF violated his due process rights. The
Supreme Court long has held that the Due Process Clause does not protect every change in the conditions
of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S. 215, 225 (1976). In
Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard for determining when a
state-created right creates a federally cognizable liberty interest protected by the Due Process Clause.
According to the Sandin Court, a prisoner is entitled to the protections of due process only when the
sanction “will inevitably affect the duration of his sentence” or when a deprivation imposes an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at
486-87; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d
789, 790-91 (6th Cir. 1995). The Sandin Court concluded that mere placement in administrative
segregation did not implicate a liberty interest because the segregation at issue in that case did not impose
an atypical and significant hardship. Sandin, 515 U.S. at 484; Wilkinson v. Austin, 545 U.S. 209, 22223 (2005).
Here, Plaintiff clearly has failed to suggest that his transfer to KCF imposes an atypical and
significant hardship. Plaintiff makes a vague and conclusory assertion that KCF is a “disciplinary facility
. . . known for gang violence.” However, Plaintiff does not allege that he was subjected to conditions which
constitute an atypical and significant hardship.
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Plaintiff also claims that the loss of his job in the RMI kitchen violated his due process
rights. The Sixth Circuit has consistently found that prisoners have no constitutionally protected liberty
interest in prison employment under the Fourteenth Amendment. See, e.g., Dellis v. Corr. Corp. of Am.,
257 F.3d 508, 511 (6th Cir. 2001) (district court properly dismissed as frivolous the plaintiff’s claim that
he was fired from his prison job); Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989) (no constitutional
right to prison employment); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (“[N]o prisoner has a
constitutional right to a particular job or to any job”); Carter v. Tucker, No. 03-5021, 2003 WL
21518730, at *2 (6th Cir. July 1, 2003) (same). Morever, “as the Constitution and federal law do not
create a property right for inmates in a job, they likewise do not create a property right to wages for work
performed by inmates.” Carter, 2003 WL 21518730 at *2 (citing Williams v. Meese, 926 F.2d 994, 997
(10th Cir. 1991), and James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989)). Under these authorities,
Plaintiff fails to state a due process claim arising from the termination of his prison employment.
Plaintiff also claims that his due process rights were violated by the loss of personal
property, as well as two of the books that had been ordered for him by his father. Plaintiff’s due process
claim is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels
v. Williams, 474 U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and
unauthorized act” of a state employee has no federal due process claim unless the state fails to afford an
adequate post-deprivation remedy. If an adequate post-deprivation remedy exists, the deprivation,
although real, is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both
negligent and intentional deprivation of property, as long as the deprivation was not done pursuant to an
established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff’s
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claim is premised upon allegedly unauthorized acts of a state official, he must plead and prove the
inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th
Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority,
a prisoner’s failure to sustain this burden requires dismissal of his § 1983 due-process action. See Brooks
v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Numerous state post-deprivation
remedies are available to him. First, a prisoner who incurs a loss through no fault of his own may petition
the institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property loss
of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; MDOC Policy
Directive 03.02.131 (effective Oct. 21, 2013). Alternatively, Michigan law authorizes actions in the Court
of Claims asserting tort or contract claims “against the state and any of its departments, commissions,
boards, institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The Sixth Circuit
specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480.
Plaintiff alleges that state post-deprivation remedies are inadequate because he was not
given permission to petition the Prisoner Benefit Fund, the State Administrative Board may only grant
compensatory damages, and the Court of Claims does not have jurisdiction to grant injunctive or
declaratory relief, or to award punitive damages. However, in order to satisfy due process, the postdeprivation remedy does not have to guarantee a successful outcome, nor is it required to provide relief
equivalent to that available in a § 1983 action. See Parratt, 451 U.S. at 543-44. As the Court has
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instructed: “Although the state remedies may not provide . . . all the relief which may have been available
. . . under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements
of due process.” Parratt, 451 U.S. at 544. Due process only requires that an adequate post-deprivation
remedy be available when the deprivation of property occurs. Id. at 544. The Sixth Circuit specifically
has held that Michigan provides adequate post-deprivation remedies for deprivation of property. See
Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995). Because there were an adequate postdeprivation remedies available to Plaintiff, his due process claim for the deprivation of his property will be
Plaintiff also asserts a violation of his substantive due process rights under the Fourteenth
Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or property, without due
process of law[.]” U.S. Const. amend. XIV. “Substantive due process prevents the government from
engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered
liberty.” Prater v. City of Burnside, Ky., 289 F.3d 417, 431 (6th Cir. 2002). “Substantive due process
serves the goal of preventing governmental power from being used for purposes of oppression, regardless
of the fairness of the procedures used.” Pittman v. Cuyahoga Cnty. Dep’t of Children & Family
Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir.
“Where a particular [a]mendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that [a]mendment, not the more generalized
notion of ‘substantive due process,’ must be the guide for analyzing such a claim.” Albright v. Oliver, 510
U.S. 266, 266 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)) (holding that the Fourth
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Amendment, not substantive due process, provides the standard for analyzing claims involving unreasonable
search or seizure of free citizens, and the Eighth Amendment provides the standard for such searches of
prisoners)). If such an amendment exists, the substantive due process claim is properly dismissed. Heike
v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013).
In this case, there are specific constitutional amendments that apply to Plaintiff’s claims.
For example, as discussed above, the Eighth Amendment provides an explicit source of constitutional
protection to Plaintiff concerning his “deliberate indifference” claims. See Dodson v. Wilkinson, 304 F.
App’x 434, 438 (6th Cir. 2008) (because the Eighth Amendment supplies the explicit textual source of
constitutional protection for claims governing a prisoner’s health and safety, the plaintiff’s substantive due
process claim was subject to dismissal). Similarly, the First Amendment provides an explicit textual source
of constitutional protection for Plaintiff’s retaliation claims. Thus, the standard applicable to that source,
the First Amendment right to be free from retaliation, and not the more generalized notion of substantive
due process should be applied. Graham, 490 U.S. at 395; see also Bell v. Johnson, 308 F.3d 594, 610
(6th Cir. 2002) (holding that, after Graham, the First Amendment standard is the sole source of substantive
protection); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (A
“substantive due process right to free speech is duplicative of [a] First Amendment retaliation claim.”).
Likewise, the Fourteenth Amendment Procedural Due Process Clause would apply to protect Plaintiff’s
rights with regard to his transfer, as well as with regard to the loss of his property. Consequently, Plaintiff’s
substantive due process claims will be dismissed.
Plaintiff repeatedly asserts that Defendants did not properly respond to grievances and
interfered with his use of the grievance procedure. The courts repeatedly have held that there exists no
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constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v.
Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir.
2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568,
569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb.
7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance
procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405,
407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994).
Moreover, Defendants’ actions have not barred Plaintiff from seeking a remedy for his
grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to assert
grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates
may voice their complaints to, and seek relief, from prison officials’ while leaving a formal grievance
procedure intact.” Griffin v. Berghuis, 563 Fed. App’x 411, 415-416 (6th Cir. 2014) (citing North
Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n. 6 (1977)). Indeed, Plaintiff’s ability to
seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568
F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been improperly prevented from filing a grievance,
his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be
compromised by his inability to file institutional grievances, and he therefore cannot demonstrate the actual
injury required for an access-to-the-courts claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996)
(requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement
only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff
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were improperly denied access to the grievance process, the process would be rendered unavailable, and
exhaustion would not be a prerequisite for initiation of a civil rights action. See Ross v. Blake, 136 S. Ct.
1850, 1858-59 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by
the interference of officials, the grievance process is not available, and exhaustion is not required); Kennedy
v. Tallio, 20 F. App’x 469, 470 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails
to state a cognizable claim regarding Defendants’ handling of his grievances.
Finally, Plaintiff claims that Defendants’ conduct violated his rights under state law. Claims
under§ 1983 can only be brought for “deprivation of rights secured by the constitution and laws of the
United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not
provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995);
Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants violated
state law therefore fails to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks to invoke
this Court’s supplemental jurisdiction over a state-law claim, the Court declines to exercise jurisdiction.
In determining whether to retain supplemental jurisdiction, “[a] district court should consider the interests
of judicial economy and the avoidance of multiplicity of litigation and balance those interests against
needlessly deciding state law issues.” Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th
Cir. 1993). Ordinarily, where a district court has exercised jurisdiction over a state-law claim solely by
virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial, the court will dismiss
the remaining state-law claims. Id. Dismissal, however, remains “purely discretionary.” Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch
Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). Here, the balance of the relevant considerations
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weighs against the continued exercise of supplemental jurisdiction. Accordingly, Plaintiff’s state-law claims
will be dismissed without prejudice to his ability to bring the claims in state court.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith within
the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.
1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis
for an appeal. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee
pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in
forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay
the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
October 11, 2016
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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